Summary: Mr X complains on behalf of his son, Mr Y, who is a disabled adult, about how the Council assessed Mr Y’s priority for social housing allocation. There was fault by the Council which caused avoidable distress to Mr Y, and avoidable distress, time, and trouble to Mr X. It also may have caused Mr Y a missed opportunity to bid on a property that is suitable for him. The Council agreed to apologise, pay a financial remedy, and reconsider Mr Y’s application, backdating this as needed. It will also consider whether it should make changes to its processes or staff guidance to address the faults identified.

The complaint

1. Mr X complains on behalf of his son, Mr Y, who is a disabled adult, about how the Council assessed Mr Y’s priority for social housing allocation in 2022 and 2023. Mr X says the Council did not consider this properly and gave Mr Y a lower priority than it should have. It then took too long to consider Mr X’s request for a review of this decision, and his complaint about the issues.
2. Mr X says these issues affected Mr Y’s mental and physical health. Mr X wants the Council to apologise and increase Mr Y’s housing priority.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
8. Mr X and the Council had opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

Legislation and statutory guidance – housing allocations

9. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
10. An allocations scheme must give reasonable preference to applicants in the following categories:
• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds; and
• people who need to move to avoid hardship to themselves or others;

(Housing Act 1996, section 166A(3))

11. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
12. Statutory guidance on the allocation of accommodation says:
• review procedures should be clear and fair with timescales for each stage of the process;
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker; and
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

The Council’s housing allocation policy

13. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.
14. The Council assesses and places qualifying applicants in one of four priority bands, based on the urgency of their housing need.
15. The Council provides reasonable preference to applicants for various reasons. One factor it considers is whether the applicant has medical or welfare needs which would be alleviated by a move to more suitable accommodation. The banding for medical and welfare needs is described as follows.
• Emergency. In immediate need of re-housing on medical grounds, or on welfare grounds where there has been a major incident and there is proven threat to life or limb.
• Gold. Urgent medical need or long-term disability that would be alleviated by a move to more suitable accommodation. Exceptional circumstances where the current property has a critical long-term detrimental effect on their welfare.
• Silver. Significant medical need, or welfare need, that would be alleviated by a move to more suitable accommodation.
• Bronze. All other applicants.

Background

16. Mr Y is an adult with disabilities, including a learning disability. He also has mental health problems. He grew up within the Council’s area, but now lives elsewhere, in a different council’s area, with his father Mr X.
17. In 2021, the Council accepted a housing application from Mr Y, which Mr X completed on his behalf. Mr Y applied to the Council’s housing register because he wanted to move back to its area, where his mother and other family members live. The Council gave Mr Y Bronze priority on its register, the lowest priority, awarded to all applicants.
18. A month later, the Council increased Mr Y’s priority to Silver, based on information Mr X provided about Mr Y’s medical and welfare needs.
19. In late 2022, Mr X applied to the Council to increase Mr Y’s priority banding. The Council considered this in January 2023 and decided Mr Y’s priority should remain in the Silver band. However, after this, Mr X asked the Council to review its decision and increase the priority to Gold. This review process resulted in the Council decreasing Mr Y’s priority to Bronze.
20. Mr X complained to the Council about this in 2023. The Council decided Mr Y should remain in the Bronze band. Mr X then came to the Ombudsman.

My findings

The role of the Ombudsman

21. The Ombudsman is not an appeal body. It is not our role to decide what priority a housing applicant should be awarded. We investigate the processes a council followed, to assess whether it made its decisions properly. Where a council has followed the law and its own policies, and considered all the information it should have, we cannot question or criticise the Council’s decision simply because a complainant disagrees with it.

January 2023 housing allocation decision

22. In January 2023, after an application from Mr X to increase Mr Y’s priority banding, the Council decided he should remain in the Silver band. I considered the Council’s records about how it considered this application, and its communications with Mr X about the outcome. I found the Council properly considered all the evidence Mr X had provided. I found no fault in how the Council made the decision which would cause me to question the outcome.
23. However, the Council’s policy says this should be completed within 28 days where possible. It took 55 days to consider it and did not keep Mr X updated about timescales. This failure to keep Mr X updated, was fault. However, I did not find this caused significant injustice or affected Mr Y’s application, as ultimately the banding decision remained the same, so the time taken did not change anything in this case.

The Council’s review/appeal procedure for housing allocations

24. The Council’s allocation policy sets out its process for review/appeal of housing allocation decisions.
25. The Council’s uses a policy which is shared with other councils in its area. In the policy, these are called “partner councils”. A third-party organisation administers part of the review and appeal process for the councils that use the policy. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
26. A key summary of the Council’s policy follows.
1. Stage 1 – Internal Review
1. A senior housing officer not involved in the original decision will carry out the review.
2. The review will be completed within 14 days of receipt, or the applicant will be updated if extra time is needed.
3. The Council will write to the applicant with the review outcome within 7 days of making its decision.
2. Stage 2 – Appeal Panel (carried out by third-party organisation on the Council’s behalf)
1. The panel comprises of three or more senior housing officers from three partner councils, who were not involved in the original decision or Stage 1 review.
2. The panel will meet and consider evidence from the applicant’s submission, and from the housing officer who dealt with the case at the Council. A member of administrative staff from the third-party organisation arranges and chairs the panel, and decides if the applicant, or the housing officer, should be invited to attend a “review hearing” because additional information is needed. If the applicant is invited to attend a review hearing, they may bring a representative.
3. The panel must come to a majority decision. If it does not, the chair (i.e., the member of administrative staff from the third-party organisation) will arbitrate.
4. The appeal will be completed within 56 days of receipt, or the applicant will be updated if extra time is needed.
3. Council complaints procedure

If an applicant feels the review/appeal procedure has not been properly followed, or they have been treated unfairly, they can complain via the Council’s corporate complaints procedure.

March 2023 Stage 1 review outcome

27. After the Council decided in January 2023 Mr Y’s priority should remain at Silver, Mr X asked it to review the decision. He said he thought the Council should increase Mr Y’s priority to Gold, because he felt Mr Y met the criteria. The Council carried out a Stage 1 review and decided in March 2023 it should decrease Mr Y’s priority, from Silver to Bronze.
28. The Council’s policy describes Stage 1 as an internal review by a senior housing officer. In Mr Y’s case, the review was conducted by a member of staff from the third-party organisation, who was not a housing officer. I carefully considered the Council’s comments about why the process followed in Mr Y’s case differed from that set out in its policy. In these circumstances, I decided this in itself was not fault. Mr Y’s review was still considered independently, and there are sufficient records to evidence what was considered in the decision making.
29. When the Council wrote to Mr X with the review outcome, it said it had considered all the information held on Mr Y’s housing file and provided a list of evidence it considered. In response to my enquiries, the Council reiterated this list as what it considered. In the review outcome letter to Mr X, the Council said Mr X:
• had not provided proof Mr Y had a “urgent medical need or long-term disability that would be alleviated by a move to more suitable accommodation” (Gold Band criteria), or a “significant medical need that would be alleviated by a move to more suitable accommodation” (Silver Band criteria);
• had provided “no medical evidence” to support his statement that Mr Y had recently lost weight and that his stress and anxiety levels had increased; and
• had provided “no medical evidence” to show Mr Y had increased stress and anxiety which was linked to the property he lived in or would be alleviated by a move to more suitable accommodation, or to the Council’s area.
30. The list of evidence the Council said it considered did not include supporting evidence the Council received from an NHS professional in October 2022, before the previous Silver decision, about Mr Y’s medical and welfare needs and the impact of his housing situation. In response to my enquiries, the Council said “we have not received supporting evidence from a medical practitioner of the impacts of the applicant’s medical and welfare needs. Therefore, we have largely been limited to considering the information provided during a conversation with [Mr X] on 25th March 2021”. I asked the Council about this, and it explained it considered Mr Y’s full housing file in making its decision, including the October 2022 NHS letter. It said its decision was not that Mr X had failed to provide any medical evidence, it was that this evidence was not sufficient to show Mr Y met the criteria for its Silver or Gold Bands. I was satisfied with the Council’s explanation about this. I therefore found no fault in how the Council made its Bronze decision at Stage 1 review.
31. When applicants bid on a property, the Council allocates each property to the bidder who has held the highest priority for the longest time, i.e., has the earliest ‘priority date’ within the highest banding. The Council confirmed that from the point of this Stage 1 review outcome in March 2023, it changed Mr Y’s priority date to the date of the decision, i.e., to March 2023. Although I found no fault with the decision making, this change of priority date was fault. This put Mr Y at a disadvantage because when his priority was decreased, his priority date was moved later, so he moved to the bottom of the lowest band on the housing register. He had been on the register since late 2020, so should have been placed higher up the list, in line with the date of his original application. When responding to our enquiries about this in February 2024, the Council accepted it should review Mr Y’s priority date because it may have applied it incorrectly. It quickly corrected this and changed Mr Y’s priority date to the date of his original application in November 2020.

June 2023 Stage 2 appeal outcome

32. After the March 2023 Stage 1 review, Mr X asked to appeal at Stage 2. The Council considered this and decided in June 2023 that Mr Y’s priority should remain at the decreased banding of Bronze. This was with the same wrong priority date it had decided at Stage 1 (which the Council corrected during our investigation).
33. The Council has no notes or minutes of the Stage 2 panel meeting. The only evidence of the discussion is the outcome email to Mr X. This lacks any detail and is not clear about which pieces of evidence were discussed, the factors the panel considered, or the reasons for the panel’s decision. Our principles of good administrative practice say the basis on which decisions are made should be open and transparent. Decision reasons should be clear, evidence based and explained. I therefore found fault in how the Council made its decision, and how it communicated this to Mr X.

September 2023 housing allocation decision

34. In August 2023, Mr X provided updated evidence about Mr Y’s disability benefits, in support of his housing application. This is because the Council reviews the housing priority for all applicants on a yearly basis and may ask that updated evidence is provided. The Council considered the updated benefits information and decided in September 2023 that Mr Y’s priority should remain at Bronze. I found no fault with how the Council considered this updated benefits evidence, other than that Mr Y’s wrong priority date from the previous review/ appeal remained in place. (which the Council then corrected during our investigation).

Complaint handling

35. Mr X complained to the Council in June 2023, following the Stage 2 appeal panel.
36. The Council did not properly process Mr X’s complaint, which meant he had to complain again around six weeks later. Also, it repeatedly provided confusing information and told him he had to make the complaint via a different route. This was fault.
37. Where a housing applicant has completed a council’s review/ appeal procedure, we do not expect them to also complete its corporate complaints procedure. Therefore, if an applicant approaches us at this stage, opting not to proceed with the Council’s complaints procedure, we may consider their complaint. However, councils may, if they wish, direct housing applicants to their complaints procedure following appeal consideration, rather than straight to the Ombudsman, for another opportunity of council consideration. As described at paragraph 26c, the Council’s allocation policy says if an applicant feels the review/appeal procedure has not been properly followed, or they have been treated unfairly, they can complain via the Council’s corporate complaints procedure.
38. In the Stage 2 appeal outcome, the Council directed Mr X to the corporate complaints procedure but said “this will not change the decision of the appeal; the appeal process has now ended”. In response to my enquiries, the Council clarified this information provided to Mr X was wrong. It said if the complaints procedure identifies fault in the appeal/review process, this may result in a change to the decision, or an invite to make a new review request. The Council was at fault for the confusing information it provided to Mr X, which implied further consideration via the complaints procedure could not result in a change to Mr Y’s priority band. The Council pointed out this communication came from the third-party organisation. As explained at paragraph 25, we consider this to be fault by the Council.

Injustice caused to Mr Y and Mr X

39. Had the Council acted without fault in considering the June 2023 Stage 2 appeal outcome, I cannot say, even on the balance of probabilities, what priority band it would have awarded Mr Y. This is a decision for the Council.
40. As it stands, Mr Y remained in the Bronze band, with a March 2023 priority date, after the Stage 1 review decision in March 2023. In February 2024, the Council corrected his priority date to November 2020. Mr Y may have missed out on properties due to the Council’s fault, as he had the wrong priority date for 11 months. There also remains uncertainty about whether he was in the correct priority band following the Stage 2 appeal. This uncertainty causes Mr Y and Mr X distress. The Council should remedy the injustice caused.
41. Because of the Council’s fault in its handling of the appeal, and the complaint, both Mr Y and Mr X were caused avoidable distress. Mr X was caused avoidable time and trouble in bringing the complaint. The Council should remedy the injustice caused.

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Agreed action

42. Within one month of our final decision the Council will:
1. apologise to Mr X and Mr Y for the impact of the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
2. reconsider Mr Y’s housing application at Stage 2 of its appeals procedure, with all the available evidence it holds on file, in line with its published allocations policy. It will fully record, and communicate to the applicant, the reasons for its decision and what evidence it considered. If it decides to increase Mr Y’s priority from Bronze, it will do so with a priority date of when it first received the evidence on which this decision is based. The Council will then review all properties it has allocated via its housing register since 9 March 2023 which are in line with Mr Y’s housing needs. If it finds Mr Y would have been the highest bidder on a property, had it awarded him the correct priority date and/ or, if relevant, the correct band, it will pay Mr Y £500 to recognise the distress caused to him by this missed opportunity;
3. pay Mr Y £200 to recognise the avoidable distress caused by its poor handling of his Stage 2 appeal; and
4. pay Mr X £100 to recognise the avoidable distress caused by its poor handling of Mr Y’s Stage 2 appeal, and the time and trouble caused in bringing his complaint.
43. Within three months of our final decision, the Council will consider any changes it needs to make to its processes, templates, or staff guidance (including for staff at the third-party organisation acting on its behalf), to ensure:
• it fully records Stage 2 appeal panel considerations about housing allocations and priority;
• all Stage 2 appeal outcomes to housing applicants are clearly communicated, including what evidence has been considered, the factors considered, the decision reasons, and clear information about the next steps including any referral to the corporate complaints procedure; and
• where it amends an applicant’s priority banding, it properly considers what their priority date should be and accurately applies this.
44. The Council will provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. There was fault by the Council which caused avoidable distress to Mr Y, and avoidable distress, time, and trouble to Mr X. It also may have caused Mr Y a missed opportunity to bid on a property that is suitable for him. The Council agreed to our recommendations to remedy this injustice. It will also consider whether it should make changes to its processes or staff guidance to address the faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman